LIBRARY OF CONGRESS 





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Hollinger Corp. 
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62d Congress 
2d Session 



SENATE 



Document 
No. 445 



JF 493 
.U6 F6 
Copy 1 



ADDRESS 



OF 



HON. J. B. FORAKER 



TO 



THE CONSTITUTIONAL CONVENTION 
OF OHIO 

MARCH 14, 1912 




PRESENTED BY MR. BURTON 

March 20, 1912. — Ordered to be printed 



WASHINGTON 
1912 



/^'-3Sifli? 



ADDRESS OF THE HON. J. B. FORAKER TO THE CONSTITUTIONAL 
CONVENTION OF OHIO. COLUMBUS, MARCH 14, 1912. 

Mr. President and Gentlemen of the Convention : I thank you 
for the invitation that has brought me here, although I fear I may not 
be able to greatly interest or help you. 

I did not feel at liberty to decline to address you on that or 
any other account, because the work in which you are engaged is 
one of such high dignity and such far-reaching importance and 
consequence that all your requests should be regarded as co mm ands. 

In view of the long time you have been studying the subjects you 
have under consideration and after the many addresses to which you 
have listened, I do not hope to say anything new, but only to further 
elucidate, if that be possible, views with wliich you are already 
familiar. 

Before I touch upon any controverted question, let me speak of 
your work as a whole. 

WORK AS A WHOLE. 

It is commonly and properly accounted of much higher dignity 
and importance than that which usually falls to the legislature. 

This is because it deals with fundamental principles that do not 
change, while the other deals with circumstances and conditions that 
are constantly changing. In framing an organic law you are gov- 
erned by human nature and standards of morality that continue the 
same through all generations; that are the same to-day that they 
were when our government was organized, when the common law 
was established, in the days of the ancient governments of Rome and 
Greece and Egypt, and that will be the same so long as the world 
stands. 

Of course, as we go along, hving under a written Constitution, it 
may develop that some power has been omitted or inadequately 
provided for, or that some plan for executing some purpose can be 
improved, and in consequence an amendment may be necessary, but 
if the form of government and the general distribution of powers be 
satisfactory, there will be Uttle necessity to make changes or additions. 

In the century and a quarter we have lived under the Federal Con- 
stitution we have found it necessary to make only 15 amendments, 
and 10 of these were submitted to the States for ratification almost 
cotemporaneously with the submission of the Constitution itself. 
In other words, in more than a hundred years we have made only 
five amendments to the Constitution of the United States, and three 
of these were made necessary by the Civil War. 

When our fathers framed that instrument they had never heard of 
steamboats, or railroads, or electric motive power, or of any one of a 



4 CONSTITUTIONAL CONVENTION OF OHIO. 

thousand other things of which we have knowledge and are con- 
stantly making use, and yet the work they did has been found capable 
of being adapted to and to provide for all the numerous changing 
conditions and relations of society that have resulted in consequence. 
It has not been necessary to strike out from or add to the instrument 
they framed a single word on any such account. 

But while it has been necessary to make only this limited number 
of changes in our Constitution, it has been necessary for the legisla- 
tive department of the Government to enact thousands of pages of 
statutory provisions, most of them made necessary by the ever- 
changing conditions that have marked the progress of the world. 

This is practical proof of the weightiest character, that in making 
an organic law we should confine ourselves as nearly as possible to 
that which is elementary, fundamental, and unchanging, while the 
legislature should be authorized to deal with that which is incon- 
stant. The one should deal with that which can always with a rea- 
sonable degree of certainty be foreseen, while the other must deal 
with that which it is impossible to foresee, and which can be dealt 
with intelligently only when it comes to pass. The one is intended 
to stand indefinitely; the other as occasion may require. Stating 
the same thing in another way, a constitution should deal only with 
great principles and it should deal with them only in a broad way, 
while the legislature, on the other hand, must attend always to details. 

Such being the character and offices respectively of these two kinds 
of law, it follows that specific details are out of place in a constitution, 
but imperatively necessary in a statute. The one confers power and 
regulates its use; the other prescribes duties and regulates human 
conduct. 

Specifications as to how much power shall be conferred and in 
what particular manner and under what particular circumstances 
it shall be employed, weakens, liinders, and often defeats altogether 
the purposes to be subserved. 

But the greater and more specific the details in fixing a rule of 
conduct the more certain will be its observance. 

BREVITY. 

The men who framed the Constitution of the United States under- 
stood this distinction thoroughly and observed it carefully. 

They aptly defined the purposes of their work, provided for the 
federation of the States, the character and powers of the National 
Government, its three departments, their respective authority and 
organization, including a system of elections for President and Vice 
President, Senators, and Representatives in Congress, the appoint- 
ment of judges, their jurisdiction, tenure and impeachment; they 
provided for our foreign relations, for an Army and a Navy, and 
established a Treasury, Avith a revenue system to support it. They 
authorized all the legislation of different kinds that it has been found 
necessary to enact to govern the Indian tribes and regulate our 
domestic and foreign commerce, together with all the steamboats, 
railroads, telegraph lines, express companies, and every other kind of 
carrier or facihty that ever has been or ever will be employed in con- 
nection therewith; and did it all in a compass of 7 articles, consist- 



CONSTITUTIONAL CONVENTION OP OHIO. 5 

ing of an aggregate of only 24 short sections, embracing all told less 
than 4,400 words. Some of our latest State constitutions with more 
than 40,000 words are in painful contrast. 

You may not be able to excel, but you can at least emulate their 
example. 

LET us REASON TOGETHER. 

You have many great questions to deal with, but I shall discuss 
only the initiative, referendum, and recall. 

These are new questions that have broken upon us like a storm. 
They are of such commanding importance that I pass everything 
else by that I may speak of them the more fully; but first let me indi- 
cate, if I can, with what spirit I speak. 

I have great confidence in all my fellow citizens. I believe most 
men want to do what is right — what will most promote the public 
welfare — and that, with only the rarest exceptions, all are patriotic 
enough to sacrifice bias, prejudice, ambitions, personal advantages, 
and all unworthiness for the public good as freely as they would peril 
life itself for the national flag. All they need to know is what is right, 
what is best, what will give us the best results for all, the greatest 
good for the greatest number, make us the strongest and most 
respected, and, knowing this, instantly that will be done. 

This is true of the men of all parties, creeds, and classes. 

The most impressive legislative scene I ever witnessed was pre- 
sented when the United States Senate, having become satisfied that 
war with Spain was inevitable, put a measure on its passage appro- 
priating $50,000,000, to be immediately available, for the national 
defense, and, without a word of discussion, debate, or comment of 
any kind, ordered the call of the roll and voted unanimously in its 
support. 

All party differences, all personal and political antagonisms of 
every kind were effaced and forgotten in the presence of the country's 
danger, and Republicans, Democrats, and Populists all alike remem- 
bered only that they were Americans. 

And so it must be here in this body. The law governing your 
selection to be delegates to this convention was purposely so framed 
as to make you free in the discharge of your duties from all kinds of 
extraneous obligations and give you an eye single to the highest and 
best interests of our beloved Commonwealth. 

It should not be doubted that you are imbued with the spirit it 
was intended you should have and that you are therefore open to 
argument, to reason, to persuasion. I shall strive in all I may say 
to show myself in full sympathy with you in that respect. In this 
spirit let us reason together. 

Harsh words, bitter personalities, acrimonious imputations do not 
bring men together, but force them further and still further apart. 

Unless sincerity and mutual respect for honest differences hold 
sway this hour will be wasted. 

Great waves of sentiment for reform or radical changes in estab- 
hshed laws and conditions never start without some moving cause. 

That cause may be all right, in wliich event the results will be for 
good; or it may be all wrong or out of all proportion to the commo- 



6 CONSTITUTIOlSrAL COKVEN"TIOK OF OHIO. 

tion it excites, or the wave may gather a vokime and intensity that 
will make it more dangerous than the evil of which it is born. 

In any of these events the results will not be helpful. They may 
not be ruinous, l3ut they will not be beneficial. 

It behooves us when such waves come to study them carefully, to 
ascertain the cause, and then guide them aright if calculated for good 
and to check, control, and stop them if they threaten evil. 

We have had many such experiences. Within the memory of all 
of us we have hact the greenback wave, the free-silver wave, the 
sound-money wave, the antirailroad wave, the temperance wave, the 
antitrust wave, and many others of more or less importance that you 
will readily recall. Some, in the light of subsequent events, appear 
extremely unwise, others just the opposite, but some good came out 
of each of them. 

Men differed about them — honestly differed — but finally, after 
conflict and contests and argument and discussion, reached accept- 
able results; then the storms passed by, the waves subsided, and our 
ship of state sailed on over smoother seas, only stronger for the buf- 
fetmgs to which it had been subjected. 

So it is and will be with the wave that is upon us now. Men differ 
about it — honestly differ. Men who are conscientiously strugghng 
for the same ultimate good see with different lights. 

If rightly conducted, all such contests not only clarify the situa- 
tion, but they are educational; they make men nobler and stronger, 
and thus we are all benefited. Differences are not, therefore, to be 
deplored. If rightly considered and adjusted, they usually prove 
blessings in disguise. 

It is all according to God's providence that we should be so tried 
and tested. 

INITIATIVE AND REFERENDUM. 

First, now, of the initiative and referendum. As abstract propo- 
sitions they are old, but not familiar. 

Not to go beyond our own history, when the Constitution of the 
United States was framed it was submitted by the convention that 
framed it to the people of the several States for ratification before it 
was put into operation. That was referendum. 

When the first constitution of Ohio was adopted the convention 
that framed it did not submit it to the people for ratification, but 
promulgated it and put it into operation without giving the people 
any opportunity to approve or disapprove. 

That was not referendum. Time developed imperfections and 
insufficiencies in that instrument, but this failure to submit it to the 
people for their approval was one of the causes, in addition to others 
on account of which it was superseded by the constitution of 1851, 

The practice of submitting constitutions and their amendments to 
the people for ratification and adoption has been generally observed 
in all the States of the Union. 

In some of the States, even though their constitutions did not pro- 
vide for it, legislative measures of a local character have also been 
occasionally submitted to the people for approval before putting 
them into operation. 



CONSTITUTIONAL CONVENTION OF OHIO. ' 7 

In the same way a form of the initiative has been sometimes 
recognized in connection with local legislation without any special 
authority for it. 

There are some judicial decisions on the subject. 

With but little confhct the courts have held that where the con- 
stitution of a State has vested all legislative power in the legislature 
and is silent on the subject, both the initiative and the referendum 
may be exercised as to the legislation of municipalities and local 
subdivisions, but not as to general legislation affecting the whole 

State. ■, . 1. 

The foundation for the distinction is stated by Judge Cooley m the 
discussion of another subject, in his work on Constitutional Limita- 
tions, as follows: 



* * 



The legislature can not delegate its power to mate laws, but fundamental 
as this maxim is, it is so qualified by the customs of race and by other maxims which 
regard local government, that the right of the legislature, in the entu-e absence of 
authorization or prohibition, to create town and other inferior municipal organiza- 
tions and to confer upon them the powers of local government, and especially of local 
taxation and the police regulation usual with such corporations would always pass 
unchallenged. The legislature in these cases is not regarded as delegating its author- 
ity, because the regulation of such local affairs as are commonly left to local boards 
and officers is not understood to belong properly to the State. 

It is not necessary, therefore, to change our constitution to au- 
thorize both the initiative and the referendum as to local legislation; 
but it is necessary to change it to authorize the exercise of these 
rights by the electors of the whole State. 

It is because of this holding of the courts that it was competent 
for our last legislature to authorize the initiative and the referendum 
in municipalities; and competent for a preceding legislature to enact 
the Rose County local-option law, because under it action is taken 
by counties upon the petition of a prescribed number of voters. 

The same is true as to all the laws we have had subject to local 
votes authorizing municipal and township local option, the location 
of county seats, the building of bridges, the making of local improve- 
ments, and doing many other things that might serve as illustrations 
to show that in various ways we have always had a species of initia- 
tive and referendum, although we have not heretofore commonly 
employed these names to designate such proceedings. Our experi- 
ence in this respect should be of value to us now. 

According to this experience where the electorate is not too large, 
and where the question submitted is simple, and one affecting either 
the pocketbooks or the personal habits of the people, a good vote 
and an intelligent vote is usually secured; but when the number ot 
voters is large and the questions are complicated or have reference to 
the community as a whole and nobody in particular, the vote is 
generally very light as compared with that cast for the candidates 
for office voted for at the same time, and consequently the pubhc 
expression so secured is correspondingly less satisfactory. 

We have had the same experience with respect to constitutional 
amendments that have been submitted to be voted upon by all the 
electors of the State. . , , <• .u 

We should bear in mind, therefore, that if it be the purpose ot the 
initiative and the referendum to secure an expression of the voters 
with respect to local legislation, we have all the power and authority 



$ COIJTSTITUTIOITAL COlSrVEN'TiON OF OHIO. 

now necessary for that purpose without changing our constitution, 
and that in the second place we are hkely to get the most satisfac- 
tory expressions only when the numbers to vote are smallest and the 
questions submitted are simplest; particularly is all this true when 
Sie questions submitted do not involve sumptuary legislation or affect 
individual property rights. When these features are involved there 
is always as a rule a large vote. 

But what we are now called upon to consider is not the initiative 
and referendum as apphed to local subdivisions and to simple and 
distinct propositions of legislation, such as whether a community shall 
be wet or dry, the courthouse shall be located at one place or another, 
a particular bridge shall be built or not built, but whether or not we 
shall have general legislation affecting the whole State, to be sub- 
mitted to all the electors of the whole State; and not only general 
legislation, but the most comphcated as well as the simplest kind of 
general legislation, and be compelled to accept or reject without privi- 
fege or power to debate or amend. 

For the proposal, as you have formulated it, is that on the petition 
of a small percentage of the voters any law enacted by the legislature 
having general operation throughout the whole State shall be sub- 
mitted to the voters of the whole State for their approval before it 
shall be allowed to go into operation ; and that on a like petition any 
biU that anybody may draft shall be submitted to the whole body of 
the voters of the State for approval, and that securing a majority vote 
in its favor it shall become a law, even beyond the power of the gov- 
ernor to veto it. 

AU concede that this involves a radical change in legislative meth- 
ods; but the advocates of these propositions tell us that they do not 
involve an abandonment of representative government or any experi- 
ment; that they have been put into operation in Oregon, Cahfornia, 
and a number of other States, and that they have been found effective 
for good results ; that the movement was conceived and inaugurated 
to cure conditions of pohtical bossism and corruption ; that the people 
had lost control of their own Government, and in this way that con- 
trol has been restored to them; and that no ohe should oppose these 
propositions unless he is afraid to trust the people ; and that as whole- 
some results have been secured elsewhere, so, too, can they be secured 
here in Ohio. 

WOULD ADD TO BURDENS OF LEGISLATION. 

There are a number of objections that should be considered. 

In the first place it would increase the burden of elections, if not 
by increasing the number, at least by increasing our duties and re- 
sponsibilities. 

With only a duty of choosing between candidates and platforms 
we have found elections such a disagreeable responsibility that we have 
wisely sought to minimize their number and simplify their character. 

In this behalf only a few years ago we abolished our October elec- 
tions and later consohdated elections of Congressmen and State offi- 
cials so as to have all occur in even-numbered years and municipal 
and other local elections so as to have them occur in odd-numbered 
years. 



CONSTITUTIONAL CONVENTION OF OHIO. 9 

If now in addition to candidates and platforms we are to be com- 
pelled to consider and vote on all kinds of local and State legislation 
every time we go to the ballot box, we shall find election day the busi- 
est and most burdensome of all the year, since although the mere 
voting may be a small matter, yet the duty that will be placed upon 
us by this change will be onerous indeed. 

The reading, study, and labor attendant upon the general investi- 
gation and inquiry we must make to famiharize ourselves with the 
many measures we are likely to be required to pass judgment upon will 
be exacting beyond any experience we have ever had with elections. 
It has been said there will be a compensation in the education the 
people will get and the gratification that will come to them from a real- 
izing sense of duty performed. 

As to may people this may be in some measure true, but there will 
be a large percentage of the voters who will not appreciate the bene- 
fit thus received. It is too intangible to be an inducement to a large 
percentage who will always be so practical as to be more concerned 
about their own affairs than they are about those of the State. 

It has also been suggested that there may be but httle resort to 
these methods in actual experience ; that the great value to the public 
is in the moral effect of the knowledge that such weapons are at 
hand. 

There are two answers. 

In the first place, if they are to be httle used, it is not important 
that we have them. "The game will not be worth the candle.'' In 
the second place, practical experience where these measures have been 
adopted shows the contrary. In Oregon, where the initiative and 
referendum have been in operation some years, there has been a 
growing increase in the number of measures voters have been called 
upon to approve or disapprove at each State election. 

There were only two such measures in 1904, the first year; 11 such 
measures in 1906; 19 in 1908; while in 1910, 32 legislative measures 
were submitted under the initiative and referendum. In Oregon, the 
State prints and distributes these bills with explanations and argu- 
ments, Hmited to 200 words, for and against each measure. 

According to the proposal you have adopted these arguments are 
to be limited to 300 words each. 

In Oregon, in 1910, these bills and the explanations and arguments 
made a book of 208 pages. Each voter was expected to study care- 
fully each bill and the argument for it, and the argument against it, 
in order to quahfy himself to pass judgment upon it; and manifestly 
if he failed to do this he was not quahfied to vote intelhgently. 

If we should put similar measures into operation here and should 
make a proportionate use of them, our voting population being ten 
times greater than it is in Oregon, it would mean that we would at 
each State election be called upon to vote upon more than 300 legis- 
lative measures, and in order to quahfy ourselves to vote upon them 
intelhgently, we would have to read more than 3,000 pages of bills 
and arguments, since our arguments are each to be 100 words longer 
than they are in Oregon ; and that is more of that kind of hterature 
than 50 per cent of the people of the United States read in a hfetune. 
Most people might read that amount of fiction or history for pleasure, 
but they would not wade through such a mass of that Mnd of printed 



10 CONSTITUTIONAL CONVENTION OF OHIO. 

matter merely to learn how to vote. They would ordinarily rather 
vote in the dark or forego the privilege entirely. 

But those who would not read at all would, perhaps, have less 
trouble than those who did. To those who would not read it could 
not make any difference that the power of amendment is denied — 
that the bihs must be voted upon precisely as submitted — ' 'not a t 
crossed nor an i dotted.'' 

Every man knows who has ever had experience as a member of a 
parhamentary body that it is only through the power of amendment 
and the debate and discussion precipitated by objections that the 
weaknesses of bills as introduced are developed and corrected, and 
that without an opportunity for consideration in committee and dis- 
cussion and amendment there, and on the floor of the body, it is 
usually impossible to reach conclusions acceptable to a majority of 
the membership with respect to a controverted proposition. 

You do not need to go beyond your own experience for a conclusive 
illustration of the truth of this statement. Recall your experience 
with respect to the proposal for which a majority have voted with 
respect to the liquor question, and you will be reminded that it has 
been only through the employment of all the facilities of regular par- 
hamentary procedure that you were able, finally, to reach a conclu- 
sion upon which a majority could unite; but you need not go beyond 
the very proposition I am discussing. 

When the campaign was on, and for weeks after the convention 
assembled, the members who favored the initiative and referendum 
probably did not reahze that they would have trouble to agree upon 
a proposal acceptable to a majority of the membership; but, accord- 
ing to the press advices, it has been only through long, wearisome, 
patient, struggling endeavor and resort to every available parlia- 
mentary facility and procedure, including the much-abused caucus, 
that you have finally agreed in committee upon the proposal that has 
been reported. What you will do when the convention acts remains 
to be seen. 

EVASION OF RESPONSIBILITY. 

Another objection, applicable to the referendum, is that it has a 
tendency to induce legislators to evade their responsibility as to 
troublesome questions of legislation, a vote on which, either for or 
against, they desire, for any reason, to avoid. 

Again, it is unnecessary to go beyond the experience of this body 
for support for this objection. 

A few d&ys ago in the report of 3mur proceedings the newspapers 
carried the following: 

Many delegates here to-day predicted the adoption of the woman's suffrage proposal. 
Several delegates stated that they would not oppose the question on the floor, for the 
reason that they believed the electors would defeat it when submitted. 

It is fundamental that every public official should act with respect 
to every measure he is called upon to consider, according to his con- 
scientious conviction of duty. AU so agree, and yet it is common 
knowledge that we do not always get this liighest and best service 
when it is known that no matter what action may be taken, it is not 
final, but subject to review. 



CONSTITUTIONAL CONVENTION OP OHIO. 11 

TWO LEGISLATURES. 

A more serious objection is the fact that these proposed changes 
would provide for practically two legislatures. 

One composed of representatives duly chosen who meet in an organ- 
ized body and under the obligations of an oath of ofhce discharge their 
duties according to parliamentary procedure. 

The other an unorganized body of electors, limited only by the total 
number in the State, who do not act under the responsibilities of an 
oath of ofhce; who have no parliamentary procedure; who can not 
have the benefits of consideration by a committee, with a report 
therefrom; who can not amend or suggest amendments; who can not 
by objection and discussion and debate develop a necessity for 
amendments; who are largely dependent for information upon what 
is furnished them by the State, which would probably be greater in 
volume in a State like Ohio than the average voter would be able to 
read, let alone study and master, no matter how willing he might be 
to try to do so under fair circumstances. 

It is' not a question of trusting either the integrity or the intelligence 
of the people, but rather of trusting their patience and wiUingness to 
make the investigation and study necessary to enable them to act 
with wisdom. 

We have had some experience as to what voters will do as to general 
proposals under ordinary circumstances. They have had a good deal 
of experience in Oregon. 

This experience shows that on legislative propositions of a general 
character, not affecting personal habits or individual pocketbooks, 
the total vote cast ranges from about 60 to 80 per cent of the total 
vote cast at the same election for candidates for office, indicating that 
in addition to those who may vote against measures because they do 
not know enough about them to be satisfied to vote for them, there 
must be a very large percentage of voters, who, for the same lack of 
information, do not vote at all. 

According to newspaper reports you have been advised to favor a 
short ballot. There is much to be said in favor of that suggestion. 
The chief reason for favoring a short ballot is, however, that the 
voters, according to the gentlemen who advocate that reform, should 
not be required to study the qualifications and fitness of an undue 
number of candidates to be voted for at the same time; but it would 
seem inconsistent to argue that it is too much to require of the voter 
that he shall pass judgment on perhaps a dozen candidates at the same 
time, and yet at the same time vote to approve or disapprove 30 
or more, perhaps 300 or more, legislative measures, all important, and 
all affectmg the whole State, and most of them probably sufficiently 
comphcated to cause lawyers to difter and courts to disagree as to 
how they should be construed. 

Experience has shown that the voter is much more hkely to study 
candidates than he is to study legislative propositions, especially 
when the legislative propositions do not concern his personal habits 
or his pocketbook, for the record shows that everywhere in this coun- 
try where experience has been had, and everywhere in Switzerland, 
from which country we are borrowing these ideas, mth the exceptions 
noted, the vote will always be from 20 to 50 per cent greater upon 



12 CONSTITUTIONAL CONVENTION OF OHIO. 



1 



individual candidates than on legislative propositions. Many voters 
lose interest in a ballot as soon as they get through with the human 
being, flesh and blood part of it. 

In Switzerland the neglect of the elector to vote on legislative 
propositions, although presented on the same ticket with candidates, 
for whom he voted, became so great that finally laws were passed 
making it compulsory for him to also vote upon the legislative pro- 
posals. But the aggregate vote for and against measures has been 
no larger since than it was before. The nonvoters now vote as the 
law requires, but they vote blanks, thereby demonstrating that while 
you may compel the voter to go to the polls and cast a ballot, you 
can not compel him to vote for or against if he prefers not to do so; 
and that rather than vote for or against measures he does not under- 
stand, or take the trouble to learn about, he will "shoot in the air." 

MINORITY RULE. 

The result is that where a majority of all the votes cast at the elec- 
tion is not required to carry a measure, but only a majority of the 
votes cast for and against the proposition, it frecjuently occurs that 
a measure is adopted by a minority vote. This has happened so 
often that it is a just criticism to charge that the plan is well calcu- 
lated, if not intended, to enable a compact, well-organized minority 
to carry a proposition against an unorganized majority. 

It has been stated that as a rule all men who believe in a single tax 
as advocated by Henry George favor the initiative and referendum 
because of the possibility thus afforded of enacting a law of that char- 
acter. 

The statement has been repeatedly made in the public press that 
prominent leaders of the single tax movement have said that their 
purpose in favoring the initiative and the referendum is to make more 
possible, through the compact organization of a minority, the enact- 
ment of the legislation they desire. 

Without regard to what the fact may be as to that matter, it is not 
wise to favor measures calculated to give a minority control. That 
the majority shall rule is a basic principle of our institutions. 

Many other objections might be made, but I shall mention only 
one more, probably the most serious of all. 

We could survive all the evils that would likely result on account 
of the objections already mentioned if they should be overruled and 
there were no others; for none of them would be vital in character, 
and in time we might and would find some way to correct evils that 
might arise, both those which are foreseen and those which are unfore- 
seen; but this proposed change would be attended, I fear, with far 
more serious consequences than any yet pointed out. 

REPRESENTATIVE GOVERNMENT. 

We have a representative form of government; our fathers were of 
the opmion that in a country of such vast areas as we have, with a pop- 
ulation of millions, soon to be multiplied into hundreds of millions, 
du-ect government by the people was unpracticable and impossible. 



CONSTITUTIONAL CONVENTION OF OHIO. 13 

^^^l *^5^foi'e provided for a popular government to be conducted 
not by the neople directly acting in its conduct, but by representatives 
ot the people so acting— representatives chosen by the people, because 
ot then- supposed character and qualifications for such service— all 
sworn to sustam the constitution of the State and the Nation and all 
the laws of the country. 

When this form of government was adopted it was thought to be a 
long step forward m the science and progress of enlightened govern- 
ment It was thought to solve the difficult problem of how the 
people could conduct a government of their own. 

For more than a hundred years we apparently unanimously flat- 
tered ourselves that we had successfully solved that problem; that 
we had popular government; that the people did control the Govern- 
ment. We believed with Lincoln — that our Government was of the 
people, by the people, and for the people. 

The American people not only have believed through all this — 
more than a century of national life and experience — that they have 
had such a government, but they have become attached to it, affec- 
tionately attached to it, because of the wonderful success they have 
achieved under it. This should, at least, admonish us to not make 
radical changes lightly or inconsiderately, but only after careful 
examination and with an mtelligent conception, if we can get it, of the 
consequences. 

Surely we should know whether we are to take a step backward or 
forward ; whether it is progress or retrogression that is offered. What, 
then, is it that we are asked to do ? 

We are told that it is not an abandonment of representative govern- 
ment, but only a restoration. This statement concedes that aban- 
donment would be a fatal objection. It is therefore important to 
ascertain whether the statement be true. 

To say that the people shall do directly what they have been doing 
by representatives is to simply say that as to the particular matters 
involved they will have no representatives, and to say they wiU have 
no representatives in a given case is to say that we have at least to 
that extent reached the end of representative government. And that 
is at least partial abandonment, and that is all that has been claimed. 
It is the entering wedge. 

If representative government had been a failure, there might be a 
good excuse for what is proposed, for in such a contingency it would 
behoove us to make some land of change; but representative govern- 
ment has not been a failure. On the contrary, it has been a trium- 
phant success. 

Under it there have been many abuses. Many men selected to 
office have disappointed their constituents. There have been many 
scandals to jar our confidence, but, all things considered, we can say, 
without successful contradiction, that our Government and our peo- 
ple have been freer from troubles of this character than any other in 
the world. 

This is particularly true as to our own State of Ohio. From the 
day when in 1788 civil government for the Northwest Territory was 
inaugurated at Marietta down until this time the history of our State 
and its government has been one to excite our unqualified pride. 



14 CONSTITUTIOISrAL CONVENTION OF OHIO. 

We have liad only enough disappointment to emphasize the excep- 
tionally high character and extraordinary efhciency of those who have 
represented us in public life. 

They may have had insufferable troubles in Oregon and California, 
and they probably did have. It may be they could not find any other 
equally efficient way in which to remedy those troubles. I would not 
criticize the men who in those States were compelled to grapple with 
conditions we may not understand and who doubtless with a patriotic 
and laudable purpose to restore and insure good government resorted 
to these methods; but however it may have been in those States, 
there has been no sufficient provocation for any such experiment in 
Ohio. 

Moreover, with their smaller populations and their peculiar con- 
ditions, methods and systems may be practicable there that would 
not be with us. We have a vastly larger population, more varied 
interests, more business activities, and a restless, busy, intelligent 
people, who need all their time for their own affairs, and therefore 
prefer that legislative measures shall be framed and dealt with by 
representatives assembled in parliamentary bodies and acting under 
official responsibility. 

So much of our time is so necessarily taken up with elections and 
legislative matters that we prefer to curtail these duties rather than 
enlarge them. Only a few years ago public sentiment became so 
strong against annual sessions of our general assembly that it forced 
the adoption of biennial sessions. Let us not now thoughtlessly or 
for some trivial cause or under some specious pretext fly to the other 
extreme and create another legislature of the character proposed, 
especially not until we have some better reason than that "it has 
worked well in Oregon." 

Along with the initiative and referendum the recall has been put 
into operation in these other States and has been proposed to this 
convention. I understand there is not much likelihood of such a 
proposal being adopted, and that is fortunate. Fortunate, because 
most of our civil officers are elected only for the short term of two 
years. As to all such they are scarcely familiar with their duties 
until they must either retire or stand for reelection. 

There is nothing in our experience to show that this, with the pro- 
visions we have for removal, is not a sufficient safeguard. 

It would be a burdensome and unnecessary multiplication of our 
duties to compel us, from time to time, to hold intermediate elec- 
tions at public expense to determine whether an official duly chosen 
shall be allowed to serve out the short term for which he has been 
elected, particularly so when we may otherwise provide as will 
presently be suggested. 

JUDICIAL RECALL. 

While their terms are longer there is a more serious objection to 
the recall when applied to the judiciary. 

Our judges are not more sacred than other officials. They do not 
claim to be, nobody else claims that they are, bat their services are 
far more important than those of any other class of officials ; and it 
is important to us, rather than to them, that we should have in the 






COiJSTITTJTIOlfAL CONVENTION OF OHIO. 15 

Banner in which they discharge these duties the liighest possible 
etticiency. Our experience has demonstrated that our fathers were 
wise m making our three departments of government separate, inde- 
pendent, and coordinate ; particularly were they wise in making the 
Judicial Department separate and independent. 

There never had been a judiciary in any country, under any Gov- 
ernment, before their tune, independent as they are, not only to 
administer justice as to private controversies, but also to check all 
encroachments upon the fundamental law of the land. 

That department was made separate and independent not only 
because of the subserviency of the English judges when they helcl 
office only by the favor of the King, but because it was realized that 
we must not only have impartial tribunals for the adjudication of 
controversies between private litigants, but that if our written con- 
stitutions were to stand, there must be a power lodged somewhere 
to compel the observance of their limitations, a power that could 
check the encroachments of both the Congress and the Executive. 
Only a separate, distinct, independent department of unquestioned 
authority and power, beyond the control of either of the other 
departments, could be sufficiently independent and fearless to per- 
form this high service. The Federal Constitution led the way in 
making this reform and all the older States followed, not so much from 
compulsion as from choice. What has been the result? In neither 
State nor Nation have we had anything of which to make serious 
complaint, but only cause for sincere pride and congratulation. 

But we are told that the experience has been different in other 
States, and that our experience may not be so satisfactory in the 
future, and that for such reason the recall should be adopted and be 
made to apply to judges as well as to other civil officers. 

All are agreed that there should be some way of removing officials 
from office, including judges, on account of such offenses as are now 
made the subject of impeachment. 

It is accordingly provided in the Federal Constitution that they 
should be subject to impeachment, and provided in a general way 
what the procedure should be. 

With some variance as to the grounds most of the States have 
adopted similar provisions. 

In the Ohio constitutions of 1802 and 1851 it was provided that 
they might be removed by impeachment for "misdemeanors in 
office." 

We have had httle occasion to consider the efficiency of this 
remedy, but it may be justly criticized as too cumbersome and not 
easily available. 

Articles of impeachment can be presented only by the house of 
representatives, and they can be tried only by the senate. 

To set this machinery in motion would ordinarily be a considerable 
undertaking, even when the senate and the house are in session ; but 
the legislature now holds only one regular session biennially, and that 
is rarely longer than three or four months. The result is that five- 
sixths of the time, or possibly 20 months out of 24, impeachment 
proceedings are wholly impossible; and, during the short time they 
are available, the machinery is so unwieldy that only an extraordinary 
case would induce a resort to it; and then in most instances the time 



16 CONSTITUTIONAL CONVENTION OF OHIO. 

of the general assembly might be better employed. For haying only 
one session every two years the ordinary demands for legislation leave 
but httle time to the legislature while in session for anything else. 

In consequence the remedy by impeachment as now provided 
would be found well-nigh no remedy at all, if we should have occasion 
to invoke it. 

But this does not show a necessity for the recall as proposed, but 
rather that we should make suitable provision in some other way for a 
simpler method of preferring charges and a more available tribunal 
before which to try them, with a less cumbersome proceeding accord- 
ing to which the trial should be conducted. 

It is not within my province or privilege to formulate a proposal 
for your consideration, but I suggest that it might be made tlie duty 
of the attorney general to receive and examine charges against judges 
and other public officials, now subject to impeachment, and if he shall 
find them sufficient in law, and that there is probable guilt, to put 
them into proper legal form and report them to the governor with a 
recommendation that impeachment proceedings be had; in which 
case it shall be the duty of the governor to summon an impeachment 
court, consisting of such number of members as he shall determine, 
not less than 3 nor more than 15, to be selected by him from judges 
on the bench and other citizens of the State, in such proportion 
as he may determine; which court shall be convened at a time and 
place to be designated by him, and then and there proceed to hear and 
determine upon the law and the evidence, the charges j)ref erred— 
the attorney general representing the State, and the impeached 
official defending in person or by attorney. If charges be preferred 
against the governor or the attorney general, the chief justice of the 
supreme court might be authorized to act in his stead. 

All the details of such a proceeding should be left to the legislature. 

I am only suggesting that it is an easy matter to provide a tribunal 
that can be invoked at any time, with but httle cost, to hear, in an 
orderly way, that will protect all rights involved, any charges that 
may be brought upon which there should be a trial ; and that through 
the attorney general and the governor there would be an assurance 
that no such proceeding would be had on frivolous or trival charges, 
or except upon lines that would protect the public and secure equity 
and justice to aU concerned, with but slight expense and without 
annoying the entire electorate, concerning a matter for which ordi- 
narily it has neither time nor disposition. 

With a remedy, so easily provided, or whatever may be lacking in 
our present procedure, it does not seem wise to resort to the practically 
untried experiment of the recall, with aU its expense, trouble, and 
annoyance. 

Certainly it is not necessary to call upon the 1,200,000 voters of 
Ohio to sit in judgment upon a charge against some one of our judges 
that he has committed some kind of a ''misdemeanor in office.'' Cer- 
tainly it can be better done by a competent tribunal appointed for 
that purpose. Then why longer consider the recall ? 

There is only one answer, and that is not a good one — ^for that 
answer is: Because the recall is designedly broad enough, where it has 
been put into operation, to embrace within its scope other purposes 
than the ascertainment of truth and justice. 



CONSTITUTIONAL CONVENTION OF OIi: ^. 17 

Under the constitutions of all the older States the grounds for im- 
peachment are specifically named ; they consist of crimes, misdemean- 
ors in office, oppressions in office, conduct involving moral turpitude, 
gross immorality, and other offenses of the same general character. 
But in Oregon, where they have instituted the recall, no specific 
ground is necessary. The language of the statute being, referring to 
the petitioners who ask for the recall, "They shall set forth in said 
petition the reasons for said demand," — their reasons — not reasons 
named in the constitution or the laws, for there are nowhere in the 
laws of that State any Umitations upon the number or the nature 
of the reasons the petitioners may assign. The test, therefore, be- 
comes one of personal popularity, pure and simple, and it is so in- 
tended. 

In consequence, if a judge by a unpopular decision sets this ma- 
chinery in motion against him, he is hable to lose both his office and 
his good name as a penalty, not for any wrong he has done, not for 
any error he has committed, not for any violation or disregard of law, 
but, on the contrary, it may frequently happen because he has ably 
and conscientiously done his duty under the law and according to the 
law he is sworn to uphold. 

There can be but one purpose of thus broadening the method of 
calling judges to account, and that is to take away from the judiciary 
that independence and that fearlessness, so essential to the important 
place they are intended to fill in our form of government, to substi- 
tute dependence for independence, timidity for courage, with the 
inevitable result of the loss of that respect our judges have always 
enjoyed. 

It was to escape such possibihties that our judicial system was 
adopted and our judges were given the great powers they are author- 
ized to exercise. 

All the great statesmen of the formative stages of our Republic, 
including not only the men who framed the Constitution but those 
like Jefferson, Marshall, and Webster, who put our Government into 
successful operation and developed its powers — the very men we revere 
most for their wise, unselfish, patriotic devotion to the great problem 
of American self-government, have recognized in the independence of 
our judiciary the very keystone of our national arch, and all have 
admonished us to jealously guard and preserve it. 

To turn our b cks upon what these men taught and upon our own 
experience, b dopting a method of calling judges to account accord- 
ing to the uiib .-idled whim of the requisite numbar of petitioners, 
would be to destroy that feature of our system that has made it most 
useful and inspired us with the greatest confidence that in the fiercest 
storms that may come it will prove our sheet anchor of safety. Let 
the judge remain secure, therefore, in his great office from assault and 
molestation from any and every cause except his own personal and 
official misconduct. And should he commit error in his rulings and 
decisions, it would be only to make a bad matter worse to appeal 
therefrom to the people themselves, sitting as a high court of review. 

A court composed of all the voters of the State, not acting under 
the obhgations of an oath and necessarily in large part without many 
essential qualifications, would be a strange and unnt kind of tribunal 

15161°— 12 



18 CONSTITUTIONAL CONVENTION OF OHIO. 

to determine great constitutional questions involving human rights, 
human hberty, human progress, and possibly, yes, surely, in time, 
involving the preservation itself of our institutions. 

Instead of seeking new and strange ways in which to get away from 
ancient landmarks, let us rather take renewed confidence in what our 
fathers gave us, and strive by improving, strengthening, and forti- 
fying to go forward to an assured destiny, full of glory and honor for 
the Nation, and full of peace, happiness, and prosperity for the State. 

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